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Last Friday, Politics of the Plate received the following email from the legal department of Condé Nast Publications, the company that recently shut down Gourmet magazine, where I was an independent contractor for a number of years. The email concerns a half-dozen articles linked to at the bottom of the left-hand column of this site.

DearMr. Estabrook:

I write on behalf of The Condé Nast Publications (“CNP”), publisher ofGourmet and its accompanying websiteGourmet.com.

It has recently come to our attention that you have posted on your website, www.politicsoftheplate.com, several of your articles originally commissioned by our magazine, many of which can still be seen at our websitewww.Gourmet.com.

As you may or may not know, CNP has the exclusive right to publish such material. CNP greatly values the content commissioned from you and has every intention to continue publishing it going forward. As such, on behalf of CNP I must respectfully request that these articles be taken down from your website to ensure our exclusivity.

Please feel free to contact me with any questions regarding this matter. Thank you in advance for your cooperation in this regard.

Very truly yours,

Ricardo Yoselevitz

Leaving aside the fact that I am the author of and the copyright holder on the articles in question, one wonders why the company, a multi-billion-dollar operation that owns dozens of magazines, would bother with an unemployed writer who posts a few of his own articles on his own blog, which has revenues of absolutely zero.

I used to write articles similar to the ones that appear on politicsoftheplate.com for Gourmet’s website. When Condé Nast shuttered the magazine, I decided to create this blog because I’m a naturally curious sort, and I felt that there were not enough outlets for serious articles about the links between food and politics. I also wanted to make available a handful of my older articles that were still timely and, I think, important. They examine subjects such as:

–Florida tomato pickers being held in slavery (an on-going issue)

–The environmental damage done by salmon and shrimp farms

–The ecological havoc unleashed in California in the name of food safety

–The demise of a six-generation dairy farm

Over the past several months, Condé Nast has laid off scores of talented editors and designers. It seems sad that the once-great magazine company known for quality journalism can afford to keep lawyers on the payroll who have nothing better to do with their time than send emails like this.

72 comments

Wow, Barry, reading the comments, it seems as if some people have admonished you for violating your contract. A pact that you may or may not have signed. That may or may not have given you (or them) certain rights.

You state in your post that you are the author and holder of the copyright. To me, that statement means you read and understood the said contract, and have appropriately called them on the contract, er, carpet.

At the end of the day, this issue is really important for freelance writers who have to sign contracts in exchange for work. Understanding what they are agreeing to is extremely important.

The word “union” is unpleasant for some, but there is an organization…ok… a union…which I do not belong to, for the record… for freelance writers.

1) You’re not publishing these articles, you are linking to them, which
2) Is good for Conde Nast in that you are driving traffic to the Gourmey Web site;
3) Unless you signed a contract to the contrary, there is no law whatsoever that forbids you from linking to publicly available content on the Internet. If CN doesn’t want you to link to these stories, then it is incumbent upon CN to either put them behind a paywall, or take them down.

You aren’t republishing, you’re linking – there’s a huge difference. In fall 2008 I wrote a half dozen pieces for Portfolio.com before CN shut down the magazine’s web operations, and have linked to all of them from the clips page of my own website ever since they first appeared – with nary a peep from the company. Seems like you should be able to contact the legal department and get this cleared up fairly easily.

If Estabrook is a man of integrity, he will recognize that most of the furor over his treatment by Gourmet arises from the false impression that Conde Nast objected to him linking to his articles on their site. As several (though, unfortunately, a minority) have noted, that’s not the case. Estabrook republished the material in .pdf form. He’s no martyr.

>>Leaving aside the fact that I am the author of and the copyright holder on the articles in question,

Don’t leave this aside. This is the entire point.

If you are in fact the copyright holder and you granted Gourmet a non-exclusive licence to publish the articles rather than an exclusive one or signing all rights away, then call the lawyers out on what is clearly BS. They can’t grab rights after the fact just by writing a nasty letter.

Gawd, does everybody here wanna be a lawyer? I can’t believe the direction this string of comments has taken.

The arcane copyright issue aside, I think the real issue is Conde Nast’s attitude toward an editorial contributor who did great work — both as an editor and an author — for Gourmet. And the rights of its former subscribers.

Posting his Gourmet blogs (not his magazine pieces but his freaking blog postings) seems innocent enough, especially in light of CN’s closing down of the magazine. Seems like fair use to me. It’s not like he’s competing with them. (Kind of hard to compete with an abandonned magazine.)

There is a huge debate in the Canadian writing community now about copyright and fair use but I have never heard any professional writer declare that it is unfair to post one’s own work on one’s own website. I would have assumed that American writers would have similar concerns.

The Writers Union of Canada actively protests against the increasing tendency of corporate media companies to demand ALL rights for ALL time to a freelance article. I’ve been on both sides of the editorial line — writer and editor — and have never asked for or given anything more than first-time North American rights and non-exclusive web rights.

I think our concern should be that if Barry’s articles are available exclusively on the CN website, they will be lost forever once some weasel accountant or corporate lawyer decides the Gourmet site should be shut down permanently.

Barry is preserving his work and sharing it with us, his readers. People who, until today, I thought didn’t readily support corporate control of our food or our information. I hope I wasn’t wrong.

Frank, much of what you’ve written is just plain wrong, and seems based on feeling rather than fact. No doubt Conde could have handled this a lot better (how about a friendly note from a non-lawyer – say, an editor — before making implied threats? Or, as you say, how about not worrying about this minor issue at all? How about just acting like a human being?), but if Barry doesn’t own the copyrights, then he infringed. It’s not an “arcane” issue at all. It’s not “fair use” to publish whole articles or blog posts if they are owned by someone else. Not even close. It being “one’s own work” means nothing if the contract gives Conde the copyright.

I mean, we either live under a system of laws or we don’t. Again, this isn’t a comment on how Conde behaved here, but just on the legalities. You might find them “arcane,” but that doesn’t mean they aren’t important. There are whole (sleazy) businesses out there devoted entirely to copyright theft. It’s a huge issue.

Wow, while I certainly appreciate everyone’s passionate opinions in regards to this situation, it begs the simple question, why? I mean really, Is Mr. Estabrook making money from his blog, thereby stealing from CN? No. Yes, there may or not be laws involved, but there are hundreds of arcane laws on the books of every state in this country that go by the wayside every day. Has anyone ever heard of the ‘Zion Curtain’? Up until last year, there was a glass partition separating all bartenders from their customers in Utah. In Mesquite, Texas, it’s illegal for children to have unusual haircuts – nothing is said about haircolor, though. However, I think i will enjoy the new ‘Potty Parity Law’ in Texas, requiring twice as many women’s toilet facilities as men’s. But I digress…..

My point is that with technology changing at such a rapid pace, the intellectual property laws need to be revisited in regards to tweeting, facebooking, linking, blogging, websites, etc., and CN needs to get with the program. Perhaps if they spent the money on their magazines that they are spending on lawyers, this wouldn’t be an issue, and top notch writers such as Mr. Estabrook could spend his time covering the issues, and not covering his ass.

Help me understand, Ilene. How should IP law revisions would change the outcome in this situation? At issue is whether Estabrook can sell exclusive publishing rights to something he wrote (ka-ching…take that cash to the bank!), then turn around and violate that exclusivity by republishing it on his own (whether for cash, ad impressions, or just to promote himself as a writer).

Do you propose that authors should retain at least non-exclusive publishing rights to their own work perpetually, even if they wish to sell exclusive publishing rights to another party? If so, you just put a lot of freelancers–including Estabrook–out of work, because publications aren’t going to pay for content (or, at least, not as much), if the author can go right out and put .pdfs online (which will be downloaded and distributed far and wide).

When you suggest that Conde Nast “spen[d] the money on their magazines,” you miss the point entirely. Conde Nast sells ads. People see those ads because they buy Conde Nast magazines or visit Conde Nast web sites. Conde Nast spends money buying unique content to lure in more people to see those ads. When someone with a blog copies and republishes content for which Conde Nast bought exclusive publishing rights, it provides a way for people to get to the content without seeing Conde Nast ads (which is where they get the revenue to pay the writers of the content).

Conde Nast is not a “bad guy” for politely asking that Estabrook comply with his legal obligations. They are trying to protect their content so they can stay in business, allowing them to continue to pay people like Estabrook to write.

I posted this earlier on the MediaPost website, which directed me here.

As an editor (Chevy Enthusiast magazine), a website owner (automotivetraveler.com/home), and a contributor to more than a dozen publications around the world, I think I can share a little bit of insight on Estatbrook’s dilemma.

First, the actual layout of the article in PDF form was copyrighted by Condé Nast so technically, before it could be published elsewhere, he would have had to ask Condé Nast for permission even though he wrote the piece.

Beyond that, it all depends on what rights he surrendered to Gourmet/Condé Nast when the article was submitted. If it was something limited to first North American serial rights with concurrent web publication, which is the clause that is a part of all of my invoices to the publications I contribute to — I never sign any “all rights” requests unless I am properly compensated — then Mr. Estabrook should be able to repurpose his work for other publications after any agreed to exclusivity agreements expire. Given that Gourmet has ceased publication, this is even more in his favor.

My suggestion is to edit his piece, get new photos to illustrate the piece, and publish it where ever he sees fit. It probably wouldn’t hurt if he placed somewhere at the end of a web posting that “This article appeared previously in the (month/year) issue of Gourmet magazine. Then I believe that Mr. Estabrook will have covered all his bases.

All of this is a moot point if he signed away all rights, and Condé Nast has a contract to this effect, in their possession.

Does this make sense to the other editors, publishers, and contributors reading this?

It’s all about the contract, isn’t it? I haven’t see the terms here, but I know that the contracts I’ve had as a freelance writer (on tech stuff) through the years have varied widely. Some buy all rights to your work in perpetuity and are so bizarre as to say this includes media not yet invented. Some revert all rights to the author after six months.

So the question is, what did you sign up for?

BTW, links, if that’s all they are, can not be stopped. And if a Web site is down, you can usually still link to your articles using the Wayback Machine at the Internet Archive at http://archive.org No matter what your contract, nothing illegal about that.

I assume that letter concerns the letters under “selected articles by Barry Estabrook.” If that’s what it’s talking about — as several people have pointed out — he didn’t reprint those articles, he linked to them. I link to articles I write for other folks all the time, and I just did so today. I have links to all the articles I wrote for Portfolio. No one has ever complained.

On the other hand, if he did copy the articles somewhere on this site, then I guess CN may have a point. Barry says he is the copyright holder but that’s not standard CN practice.

I repeat, again: HE ORIGINALLY HOSTED THE ARTICLES ON THIS SITE, in PDF form. That would be a copyright violation if Conde owns the rights. We don’t know who owns them. Barry flatly stated in this post that he owned the rights, but he told me yesterday that he’s not sure:

Sorry, Dan, I hadn’t noticed your post. Well, then there is a different question: why are CN’s legal people bothering with something like this? With all due respect to Barry, I doubt very much that he has the copyright.

My question: why didn’t Conde send Barry a friendly note about the situation, perhaps from an editor. I bet anything that Barry would have simply removed the PDFs and linked to Gourmet without saying a word about it. Instead, they issued legal threats and everybody hates them for it.

Lots of freelance writers post PDFs of published articles they’ve written on their own websites or blogs. They’re electronic clips. (A prominent example: Malcolm Gladwell, who writes for another CN magazine, does it – he’s got PDFs trailing back to 1996!) Every writer needs clips, it’s part of doing business… and putting them on a site for an editor to view is a huge convenience. As an editor I have to say that writers who don’t have clips on their sites miss opportunities. So why is Conde sending this letter to Barry?